Wednesday, Alex and I are at the Podcast Hotel, where we're working out some of the big issues currently in the podcast world. Chief among those is music licensing, and I was on a panel with Rumblefish CEO Paul Anthony, talking about the current state of things, and how to move forward in a way that mutually benefits performers, rightsholders, and the people creating music podcasts.

Paul's approach, named "Podcuts", is a flat-fee licensing system for Rumblefish artists. The terms:

• Rumblefish clears the track for podcasting for a $5 fee;
• No digital rights management (DRM) is attached;
• The licensed file is 75% of the length of the track, then fading out to silence.
• Artist attribution is required.

This is a step forward in terms of licensing compared to the chaos we now have. Podcasters would know that they're covered, wouldn't have to worry about a label or a performing rights organization suing or claiming license fees after the fact.

The problem that I have with this is that it is still tied to an increasingly antiquated model, in which music is the payload radio stations use to attract listeners to the stations' ads. We can prove that we have a better way.

What I said in our session is that every new technology in music has caused a change in how music is licensed. The advent of piano scrolls forced the creation of what is still known as mechanical licensing. Radio and webcasting each spawned royalty schemes for the performances. Certain fair-use constructs, like the American Home Recording Act and the Sony Betamax decision, have also made their presence known.

Now, it's our turn, and we have to make it count. Personally, I think that requirements of DRM or fractional play is unacceptable for a podcast licensing scheme. I also believe that the system has fundamentally shifted, and the old model of pay-to-play is no longer relevant when, unlike the indirect marketing opportunity of radio, podcasters have the ability to directly drive sales through legal means. It's reasonable for podcasters who aren't using music to sell other advertising to ask for a cut of the music sales instead.

Then there's the Long Tail -- the domain of the podcaster. Music podcasts don't sound like hit radio. Most of them don't even sound like each other. To many, that's the entire point of doing a podcast.

Piracy is a subject that comes up frequently when licensing talk arises, and unfortunately, nobody has stepped up to say that fear is overblown. Compared to the KaZaA and Morpheus users out there, the number of people who are actively downloading podcasts and extracting songs from them is minuscule, if it exists at all. So let's not acquiesce to the Long John Silver treatment. It doesn't make sense here.

The Portland License is as follows.

Content owners:

• Offer royalty-free access to music in their catalog that is not in the Top n sales list for the month. (This number could be 100, 200, 500, we don't know.)


• Full tracks may be used.


• No DRM is required.

Podcasters:

• Report, in a lightweight document, what songs are in their show's playlists.


• Agree not to play more than 2 tracks from a given album per show. This would prevent a full-album spin, which could be disassembled.


• Agree not to play pre-release music without permission.


• Will give full attribution (artist, song title, album title, and label) in the body of the show.


• Will link in the show notes to purchase information. This can be a link to the iTunes Music Store, Rhapsody, Amazon or a new service which tracks podcast-driven sales.


• Attest that they have a legal copy of the music they're playing.


• Will not run third-party advertisement, in exchange for a commission on sales generated.

I believe this is the foundation of a truly reasonable arrangement for podcasters. We can play music we enjoy, would have access to thousands upon thousands of titles, and give an audience to music which is not commercially viable to market, but is still worth buying. This is good for listeners, good for podcasters, and good for artists and labels. I would like to get some feedback from label representatives on what they think about this approach.